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Det årlige opphavsrettskursetSandefjord, 19. mars 2015
Justifications of copyright revisited
Prof. Martin Senftleben VU University Amsterdam
Bird & Bird, The Hague
Social legitimacy of copyright
• interests of creators not only as a rhetorical
argument for justifying the continuous
broadening of exclusive rights
• copyright needs to be based on creators’
interests to remain credible and
understandable
• authors’ interests ≠ industry interests
• authors’ rights ≠ industry rights
Authors just a figurehead?
Introduction
Pierre Bourdieu
• Niklas Luhmann
• theory of relatively closed social systems
• each system has its own, distinct identity
• boundary between a system and its environment
• Pierre Bourdieu
• autonomous social spaces (‘fields’) with individual
rules, dominance structures and set of opinions
• but not isolated from surrounding fields and
processes
Theoretical Framework
Constant internal fight
• competing players
– autonomous, independent artists
– bourgeois, dependent artists
• predominance and leadership
– dictating internal discourse
– consecration power
– quality standards
• constantly changing structure
nomos:
l’art pour l’art
Autonomy
Importance for society
• aesthetic theories: F. Schiller, T.W. Adorno
• alternative visions of society
– not mere confirmation and support of the status
quo, comfort in the rationalized world
– but mirror of the deficiencies of social, economic,
political conditions, opposition against the
existing reality
• result: utopian views of a better life that may
become drivers of social change
Autonomy
• depends on the degree of discourse and
consecration power of independent,
autonomous artists
• predominance of dependent, profit-oriented
mainstream artists endangers autonomy of
the literary and artistic field
• current crisis because of continuously
growing power of commercial players
Copyright
Rationales of protection
• incentive (utilitarian approach)
• reward (natural law approach)
• thus: focus on financial benefits
– aligned with interests of dependent, bourgeois
mainstream artists?
– neglecting the interests of independent,
autonomous artists?
– enticing autonomous artists away from the l’art
pour l’art logic of the field?
• newcomers within the group of autonomous artists
• for a new avant-garde movement, the predominant
rules must be criticized
avant-garde
arrière-garde
Other features of the system
Andy Warhol
idea/ expression dichotomy
quotation, parody
use for educational purposes
Central support features
exploitation rights ensuring constant
supply of commercial productions
limitations supporting constant evolution of
new avant-garde movements
Copyright ‘neutrality’
Impact on the concept
of authors’ rights
not only right to commercially exploit
own works
(bourgeois authors)
but also right to transformative use of
the works of others
(autonomous authors)
Copyright ‘neutrality’
broad exclusive
rights
exhaustive enumeration of
exceptions
three-step test
EU acquis (InfoSoc Directive)
‘The exceptions and limitations provided for in
paragraphs 1, 2, 3 and 4 shall only be applied
in certain special cases which do not conflict
with a normal exploitation of the work or other
subject-matter and do not unreasonably
prejudice the legitimate interests of the
rightholder.’
Art. 5(5) InfoSoc Directive
CJEU, Deckmyn
‘In addition, as stated in recital 31 in the preamble
to Directive 2001/29, the exceptions to the rights
set out in Articles 2 and 3 of that directive, which
are provided for under Article 5 thereof, seek to
achieve a ‘fair balance’ between, in particular, the
rights and interests of authors on the one hand,
and the rights of users of protected subject-matter
on the other.’ (para. 26)
CJEU, Deckmyn
Impact on
remuneration
mechanisms
winning in economic terms
= losing in artistic
terms
Autonomous authors eligible at all?
Fair remuneration legislation
• German Copyright Contract Act 2002
• grant of a right to fair remuneration
– contract modification in case of insufficient
remuneration
– difficulty of providing evidence of customary
remuneration in a given sector
• author association/industry negotiations
• common remuneration rules as evidence of
a fair remuneration standard
ex post remuneration claim
(autonomous authors)
ex ante remuneration claim(bourgeois authors)
Different focus
Impact on
repartitioning schemes
of collecting societies
repartitioning based on market share
(in favour of bourgeois authors)
cross-financing of ‘true’ works of art
(in favour of autonomous authors)
Subsidies for autonomous authors?
The end. Thank you!For publications, search for
‘senftleben’ on www.ssrn.com.
contact: [email protected]
